Blog

What is the aim of parliamentary scrutiny of delegated legislation?

28 Apr 2020
Acts of Parliament in the Parliamentary Archives, Houses of Parliament, Westminster. (© UK Parliament / Parliamentary Archives)
Acts of Parliament in the Parliamentary Archives, Houses of Parliament, Westminster

Several parliamentary committees scrutinise delegated powers and delegated legislation. But what is the aim of this scrutiny, what standards are applied, and what are the value and limits of Parliament's role in this aspect of the legislative process?

Dr Jack Simson Caird , Senior Research Fellow in Parliaments and the Rule of Law, Bingham Centre for the Rule of Law
,
Senior Research Fellow in Parliaments and the Rule of Law, Bingham Centre for the Rule of Law

Dr Jack Simson Caird

Dr Jack Simson Caird
Senior Research Fellow in Parliaments and the Rule of Law, Bingham Centre for the Rule of Law

Prior to joining the Bingham Centre in July 2018, Jack was the constitutional law specialist in the House of Commons Library, where he led the Library's work on the European Union (Withdrawal) Bill. In 2014-15 he was a lecturer in Public Law at the University of Sussex. His academic work has focused on the UK Parliament's scrutiny of constitutional legislation.

Get our latest research, insights and events delivered to your inbox

Subscribe to our newsletter

We will never share your data with any third-parties.

Share this and support our work

The most significant legal provisions currently in force in England are contained in a Statutory Instrument: The Health Protection (Coronavirs, Restrictions) (England) Regulations 2020. This instrument was made by the government and laid before Parliament, and came into force on 26 March 2020 without any significant parliamentary debate.

This fact has highlighted two important facts about the UK constitution:

  • The first is that some of the most important legislative rules in force are made through delegated legislation, rather than primary legislation.

  • The second is that parliamentarians do not scrutinise delegated legislation in the same way that they do primary legislation.

A new report published on 20 April by the Bingham Centre for the Rule of Law, 'Brexit, Delegated Powers and Delegated Legislation: a Rule of Law Analysis of Parliamentary Scrutiny', aims to explain how Parliament scrutinises both delegated powers and delegated legislation, by extracting standards from the reports of five committees from the 2017-19 session. The report highlights the standards that these parliamentary committees apply when scrutinising delegated legislation. In this post, I explain the role played by these committees, draw attention to some of the standards highlighted in the report, and discuss the value and limits of Parliament’s role in the legislative process.

Parliament’s oversight of delegated legislation is primarily conducted by two committees:

Together, these committees represent a sophisticated and effective scrutiny system that enables Parliament to review a significant number of Statutory Instruments (2,323 were laid before Parliament in the long session of 2017-19). This is no mean feat considering the small numbers of parliamentary officials and lawyers who work for both these committees, especially when compared with the number of government officials responsible for producing Statutory Instruments within departments.

The JCSI and the SLSC complement each other. The JSCI’s remit, which is set out in a Standing Order (House of Commons Standing Order No. 151), is principally concerned with technical legal questions – for example, whether the drafting is ‘defective’ or the instrument ‘purports to have retrospective effect’. The SLSC’s remit is broader, and the Committee frequently reports on an instrument on the basis that ‘it is politically and legally important or gives rise to issues of public policy likely to be of interest to the House’.

Despite these distinctive remits, the two Committees' functions overlap in important ways. Both committees share a focus on defending Parliament’s institutional role in the legislative process. The JCSI draws attention to any delays in laying an instrument before Parliament. The SLSC identifies problems with the quality of explanatory material accompanying an instrument provided by the government. The substantive remit of both committees is focused upon matters that are designed to encourage the government to operate in way that enables parliamentarians, and parliamentary committees, to play a role in supervising delegated legislation. More broadly, both committees exist in order to identify the instruments, out of the hundreds laid each year, that should be subject to ‘further debate’ or ‘special attention’ from parliamentarians.

The work of the JCSI and SLSC performs an important function for the rule of law. The combination of their technical legal focus and their defence of Parliament’s institutional role in the legislative process means that they make both legislation and the legislation process more transparent, accessible and democratically legitimate. The work of both these committees means that Statutory Instruments that would not otherwise generate political debate or disagreement are subject to specialist scrutiny which can then lead to increased levels of parliamentary and public debate on proposals to change the law.

However, it is important to note the limits of this form of scrutiny. These committees can identify and publicise particular concerns within an instrument but they cannot change parliamentarians’ ability to influence the substance of delegated legislation. Their highest level of sanction is that they can ‘draw the attention of Parliament’ to a particular defect. That is a vital parliamentary function, but it is not one that enables parliamentarians to shape the substance of legislation.

The public debate on the Health Protection (Coronavirus, Restrictions) (England) Regulations 2020 has drawn attention to the fact that the government’s official guidance did not always appear to line up with the provisions in the regulations. This raises a number of important rule of law issues (as highlighted by Ronan Cormacain, also of the Bingham Centre). One of these is that in a society governed by the rule of law, the law of the land should be found in the statute book, and should only be changed via the democratic and transparent legislative process. In the context of the Coronavirus regulations, the relationship between the government’s guidance and the regulations is precisely the sort of issue that would draw the attention of the JCSI.

Another parliamentary committee, the House of Lords Delegated Powers and Regulatory Reform Committee (DPRRC), has previously drawn attention to the problem of the government proposing to use guidance when legislation would be more appropriate. The DPRRC’s report on the Ivory Bill in 2018 stated (at paragraph 8):

"It is fundamental to the nature of guidance (as its name implies) that, although there is a duty on the person to whom it is addressed to consider and have regard to the guidance, it is open to that person to decide not to follow the guidance if the person considers that there are good reasons for not doing so in the circumstances of a particular case."

If guidance contains mandatory rules on sensitive subject matter, then these should be set out in legislation. This would ensure that parliamentarians can at least have some formal oversight of the rules, and that committees such as the JCSI and SLSC can test whether the rules are internally consistent and as clear as possible. The JCSI’s seventh and eleventh reports of the 2017-19 session made the point that in principle basic information which is necessary to understand a regulation should be included in the instrument itself. At a time of crisis, it is particularly important that legislation is as clear and as accessible as possible.

Parliamentary scrutiny of delegated legislation is fundamentally different from scrutiny of primary legislation. There is no line-by-line scrutiny by parliamentarians. Once Parliament has entrusted the government with a delegated power, it deliberately provides limited supervision of the resulting delegated legislation and hands responsibility for scrutiny to committees with targeted remits. The JSCI and the SLSC play an invaluable role in highlighting difficult and complex issues that are worthy of special attention.

Many of the complaints made in relation to delegated legislation are based on a comparison with the primary legislative process. The two processes are clearly very different, but in both cases once an instrument or a Bill is laid or introduced to Parliament, it is often too late for parliamentarians to shape the policy in question. Nevertheless, during the parliamentary phase of the process, there will normally remain scope for technical legal or constitutional issues, particularly those that relate to Parliament’s institutional role, to be subject to particular attention which can sometimes lead to government concessions. The JCSI and other specialist scrutiny committees responsible for reviewing delegated legislation play a vital role in drawing attention to range of such issues (as set out in the new Bingham Centre report). The severity of the current crisis might mean that if a committee such as the JCSI can draw attention to issues within an SI, such as a lack of clarity or compatibility with guidance, parliamentarians and the government are likely to be particularly responsive.

Simson Caird, J. (2020) What is the aim of parliamentary scrutiny of delegated legislation? (Hansard Society: London)

News / Parliament Matters Bulletin: What’s coming up in Parliament this week? 19-23 May 2025

Stella Creasy MP and Richard Tice MP will lead a backbench debate on the EU–UK summit. The Foreign Affairs Committee will hold a joint session with its Ukrainian counterpart on Russian misinformation. MPs will question the Defence Secretary, Chancellor of the Exchequer and Northern Ireland Secretary. Scrutiny of seven Government bills will continue in both Houses. Debate topics in the Commons will include an e-petition on transgender self-identification, and support for local pubs. On the Committee corridor, highlights include sessions on the security of undersea cables and the accessibility of the parliamentary estate. Michael Gove will be formally introduced to the House of Lords as its newest member.

18 May 2025
Read more

Submissions / Status and rights of independent MPs in Parliament – Our evidence to the House of Commons Procedure Committee

Our evidence on the status and rights of independent MPs has been published by the House of Commons Procedure Committee. Our submission summarises the direct and indirect references to political parties in the Standing Orders and whether they might apply to groupings of independent MPs, analyses whether small parties and independent groupings face disadvantages, particularly in relation to committee membership, and considers whether parliamentary publications should distinguish between the many different kinds of independent MP.

12 May 2025
Read more

Blog / The Planning and Infrastructure Bill: What happens when detail is deferred?

The Hansard Society has long raised concerns about the Government's increasing tendency to present undeveloped legislation that lacks detailed policy and grants ministers broad delegated powers to fill in the gaps later. This practice undermines effective parliamentary scrutiny, by preventing MPs and Peers from fully assessing how powers may be used, (or misused), in the future. The weak system for overseeing delegated legislation—especially in the Commons—exacerbates the problem. Several powers in the Planning and Infrastructure Bill currently before Parliament highlight these ongoing issues.

14 May 2025
Read more

News / Assisted dying bill: Special series #12 - Parliament Matters podcast, Episode 93

Is Kim Leadbeater's Assisted Dying Bill now "over the hump?" The Bill's supporters got it though its first day of Report Stage consideration in the House of Commons unscathed, with comfortable majorities in every vote. So, with debate on the most contentious set of amendments disposed of, will it now coast through its remaining scrutiny days in the Commons? Please help us by completing our Listener Survey. It will only take a few minutes.

17 May 2025
Read more

Submissions / Evidence to the House of Commons Modernisation Committee: Priorities and strategic aims

In response to the Modernisation Committee's call for views on 17 October 2024, we submitted evidence outlining key areas we believe the Committee should prioritise. Our submission recommended a focus on: strengthening legislative scrutiny, with particular emphasis on reforming the delegated legislation system; enhancing financial scrutiny, especially in relation to the Budget and the Estimates; addressing strategic gaps in parliamentary scrutiny; making more effective use of parliamentary time; and reviewing the Standing Orders, language and rituals of the House of Commons.

01 Apr 2025
Read more